Becket Fund

Upcoming U.S. Supreme Court case could be a huge religion-beat sleeper story

Upcoming U.S. Supreme Court case could be a huge religion-beat sleeper story

The agenda for the U.S. Supreme Court term that began this month has zero cases involving the two religion clauses of the First Amendment.

That’s quite the change after the important religion rulings the past two years, not to mention religious conservatives’ and liberals’ agitation after the 2022 Dobbs decision, which overturned Roe , which had legalized abortion nationwide.

So religion-watchers may not be aware that the court soon takes up two potentially tectonic cases involving — would you believe it — small businesses that fish for herring off the New England coast and say they shouldn’t have to pay their federal monitors. The cases are Loper Bright v. Raimondo (docket # 22-451), newly combined Oct. 13 with Relentless Inc. v. Department of Commerce (docket #22-1219). Oral arguments could come as soon as January.

This gets into the weeds of administrative law, an area that normally does not set pulses pounding but here involves the hot political dispute over powers exercised by federal agencies. Conservatives assert that agencies have long been interpreting and enforcing laws in ways that Congress never intended or has never defined, thus usurping legislative prerogatives and violating the Constitution’s “separation of powers.”

Background: The two fishing companies seek relief by overturning the Court’s highly influential 1984 precedent in Chevron v. Natural Resources Defense Council. This unanimous decision granted wide deference to federal agencies in “reasonable” interpretations, applications and enforcement of ambiguous laws passed by Congress.

The list of Loper briefs posted by the invaluable SCOTUSBlog.com shows the variety of interests that include 48 of the 50 states lined up on the two sides and the Republican U.S. House of Representatives, along with e.g. the AFL-CIO, American Cancer Society, Environmental Defense Fund, Gun Owners of America and e-cigarette industry.

You are waiting for the religion-beat angle?


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Washington Post fires distress rockets about another religious liberty vs. LGBTQ+ case

Washington Post fires distress rockets about another religious liberty vs. LGBTQ+ case

Yes, here we go again. The first time I read through this Washington Post story — “Firing of gay Catholic school teacher could test latest Supreme Court ruling” — I thought it was another botched mainstream press story about a case in which a doctrinally defined academic community (in this case a Catholic school) fired a teacher who could not affirm the school’s doctrines (think Catholic Catechism).

That’s part of what is happening here. Once again, the journalists involved in reporting and editing this story failed to mention whether the school did or did not require teachers, staff and students to sign a covenant in which they affirmed Catholic teachings or, at the very least, agreed not to take public actions that rejected them.

That’s a classic “ministerial exception” case. The key issue is whether administrators have clearly stated the role that a doctrinal covenant plays in the life of their school. Hold that thought.

But this story has another goal — which is to fire distress rockets that the U.S. Supreme Court’s recent 303 Creative decision could strengthen the case of religious school leaders that want to employ faculty members and staff who affirm the teachings of their faith. The key word here is “bolster,” as in this secondary definition: “support or strengthen; prop up.” Look for that in the Post overture:

When Lonnie Billard announced on Facebook in October 2014 that he was engaged to his partner of 14 years, he knew not everyone in his social circles would celebrate the news. Same-sex marriage had only been legal in his home state of North Carolina for two weeks.

“If you don’t agree with this,” he wrote, “keep it to yourself.”

He received only congratulations in reply. But two months later, while the substitute teacher and his fiancé were celebrating Christmas with one of his colleagues at Charlotte Catholic High School, Billard mentioned that he hadn’t heard from the school about filling in during her post-holiday vacation.

That’s when Billard learned he was no longer being employed by the Catholic school because he was marrying a man. Billard sued the school for sex discrimination and won in 2021. That decision is being challenged by a nonprofit firm involved in multiple high-profile fights on behalf of religious conservatives, which says last month’s U.S. Supreme Court decision in favor of a web designer who did not want to work for gay couples bolsters its case.

In other words, the 303 Creative case might strengthen the already established First Amendment right of doctrinally defined religious institutions — think voluntary associations and private schools — to hire and fire personnel based on doctrinal standards. That would be bad. There is no need for the Post to consider how these First Amendment cases would defend the rights of progressive believers.


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Funny press release or valid news? Becket team salutes its 2022 public-square Scrooge

Funny press release or valid news? Becket team salutes its 2022 public-square Scrooge

Religion-beat reporters (and columnists) get lots of strange press releases and letters from folks trying to get their pet issues covered.

My all-time favorite, during my Denver years, was a 50-page (at least) handwritten treatise on why superstar Barbara Streisand was the Antichrist. That created a steady stream of amused editors to my desk. I should have had the courage to write about it.

Most press releases are written by people who have absolutely no idea what newsrooms consider to be news or even what topics the reporter/columnist targeted with the release has written about in the past.

Christmas is a HUGE time for religion-beat press releases. This is logical because some newsrooms — those without religion-beat pros, ironically — struggle to find holiday story angles, year after year after year.

This year, I received one release that made me laugh out loud, in a good way. It came from a legal think tank that has made lots of news, in recent decades, with successful arguments at the U.S. Supreme Court. I have, for a decade-plus, received variations on this release from The Becket Fund for Religious Liberty, but this one (#GASP) really should have received some coverage.

It was about this year’s winner of the “Ebenezer Award,” saluting the “most outrageous and scandalous offenders of the Christmas and Hanukkah season.” This year’s winner: The government powers that be in King County, Washington. (Click here for previous winners.)

Here’s some of the press-release background:

King County's "Workforce Equity Manager" for the Department of Human Resources, Gloria Ngezaho, recently authored and issued a memo, titled "Guidelines for Holiday Decorations for King County Employees," where she states that workers may not "appear to support any particular religion" and bans them from displaying religious symbols in any "virtual workspace." …

King's County has refused to back down on their outlandish efforts to squash the religious expression of their employees during one of the most sacred times of the year for people of faith.

Did this story receive any mainstream press coverage?


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Farewell to 'reindeer rules'? Indiana nativity scene case could have been turning point

Farewell to 'reindeer rules'? Indiana nativity scene case could have been turning point

Year after year, the Lion's Club sets up wire-frame Christmas decorations on the lawn of the historic Jackson County courthouse, facing Main Street in Brownstown, Ind.

The display, which belongs to the local ministerial alliance, glows from dusk to dawn from Thanksgiving until New Year's Day, with the county providing the electricity.

This led to yet another "Christmas Wars" dispute, with the recent Woodring v. Jackson County court decision offering a precise description of this tableau.

There is a "waving Santa Claus with his sleigh, a reindeer, seven large candy-striped poles, the nativity scene … and four carolers standing in front of a lamp post," noted Seventh Circuit Judge Amy Joan St. Eve. "Santa Claus and the reindeer are on the left. …To their right are three gift-bearing kings (Magi) and a camel, who look upon the nativity. On the right side of the sidewalk, Mary, Joseph, and infant Jesus in the stable are flanked on each side by trumpet-playing angels. To their right are several animals facing the nativity. The carolers stand in front of the animals, closer to Main Street."

Before the 2018 lawsuit, the Freedom From Religion Foundation warned that the nativity scene needed to come down. County officials responded by moving Santa and other secular symbols closer to the telltale manger.

That move was clearly linked to what activists call the "reindeer rules," in which secular and sacred symbols are mixed to honor guidelines from the Supreme Court's Lemon v. Kurtzman in 1971. The "Lemon test" asks if a government action's primary effect advanced religion, as opposed to a secular purpose, thus entangling church and state.

But the majority in the new 2-1 decision in Indiana argued that the "nativity scene is constitutional because it fits within a long national tradition of using the nativity scene in broader holiday displays to celebrate the origins of Christmas."

This post-Christmas decision in the heartland may have been a turning point.

"To the degree that the reindeer rules were based on Lemon, this decision said that we now have a new Supreme Court precedent. The reindeer rules appear to be gone," said Diana Verm, senior counsel for the Becket Fund for Religious Liberty, which filed a brief in the case.


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Religious liberty and foster care: five key numbers as SCOTUS weighs dogma and LGBTQ rights

We voted.

Then we waited. And fretted over the outcome. And waited some more.

While we did, perhaps some of us missed Wednesday’s arguments in the latest U.S. Supreme Court case pitting religious freedom vs. gay rights and the Sexual Revolution.

The dispute involves the city of Philadelphia ending its foster care contract with Catholic Social Services over the faith-based agency’s refusal to place children with same-sex parents.

Here are five key numbers that stood out to me:

5,000 CHILDREN IN CUSTODY

NPR’s Nina Totenberg’s reported:

On one side is the city of Philadelphia, which has custody of about 5,000 abused and neglected children, and contracts with 30 private agencies to provide foster care in group homes and for the certification, placement, and care of children in individual private foster care homes.

Reuters’ Lawrence Hurley and Andrew Chung asked a city official about the potential impact if the Supreme Court rules in favor of Catholic Society Services:

A ruling against Philadelphia could make it easier for people to cite religious beliefs when seeking exemptions from widely applicable laws such as anti-discrimination statutes.

“If individual organizations can begin to choose to discriminate against whom they want to serve, then it does begin to set an unfortunate precedent,” said Cynthia Figueroa, Philadelphia’s deputy mayor for children and families.

ZERO SAME-SEX PARENTS DENIED

Robert Barnes of The Washington Post quoted Lori Windham:

“Zero” was the answer from Windham, a lawyer for the Becket Fund for Religious Liberty, when asked how many same-sex couples had been denied the opportunity to be foster parents because of CSS policy. She said if ever approached, the agency would refer the couple to one of the more than two dozen agencies that have no issue with same-sex marriage.


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Justice Amy Coney Barrett could soon prove crucial on legal fights over religious vs. LGBTQ rights 

Senators, other pols and the news media are agog this week over the impact a Supreme Court Justice Amy Coney Barrett, age 48, might have on abortion law long-term and -- immediately -- disputes over the election results and a challenge to Obamacare that comes up for oral arguments November 10.

But reporters on the politics, law or religion beats shouldn't ignore Barrett's potential impact on the continual struggles between religious freedom claims under the Bill of Rights versus LGBTQ rights the Court established in its 2015 Obergefell ruling that legalized same-sex marriage. Oral arguments in a crucial test case, Fulton v. City of Philadelphia [19-123], will occur the day after Election Day — when journalists will be preoccupied with furious tabulation of absentee ballots.

At issue is whether Philadelphia violated Constitutional religious freedom in 2018 by halting the longstanding work of Catholic Social Services in the city's foster care system because church teaching doesn't allow placement of children with same-sex couples.

Such disputes first won media attention when Massachusetts legalized gay marriage and in 2006 shut down the adoption service of Boston Catholic Charities. which did not place children with same-sex couples. A prescient 2006 Weekly Standard piece by marriage traditionalist Maggie Gallagher explored the broader implications for religious agencies and colleges in free speech, freedom of association, employment law and tax exemption.

The Becket Fund, which represents the Fulton plaintiffs, produced this useful 2008 anthology covering all sides on these issues.

On October 5, the legal jousting heated up when Justice Clarence Thomas, joined by Justice Samuel Alito, issued a protest found within this memo (.pdf here).They dissented on Obergefell, but their chief concern now is that the court's ambiguity "continues to have ruinous consequences for religious liberty" that only SCOTUS itself can and must now remedy. A two-line Slate.com. headline typified reactions of the cultural Left:

Two Supreme Court Justices Just Put Marriage Equality on the Chopping Block

LGBT rights were already in jeopardy. If Amy Coney Barrett gets confirmed, they're likely doomed


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Where are reporters supposed to turn for a balanced list of 2020 religious pundits?

Where are reporters supposed to turn for a balanced list of 2020 religious pundits?

In a time of intense anxiety across America, an influential clergyman brands a president he opposes for re-election as “essentially” the same as a foreign “dictator,” and even calls him the “Fuhrer.”

When? Who? Though opponents of Donald Trump have applied an alternative N-word— “Nazi” — during the equally tense 2020 campaign, The Guy is talking about some harsh words aimed at Franklin D. Roosevelt, who was seeking his controversial third term.

The president’s accuser was the Rev. Charles Clayton Morrison, who served 39 years as editor of the “mainline” Protestant Christian Century magazine, who despised Roosevelt’s military preparedness and the draft. As an anti-war socialist, he thought Adolph Hitler’s conquests, though displeasing, could create “a united Europe governed from the German center, with a unified planned economy” that would supplant “perverted” capitalist influences.

Journalists of that era would have been well advised to also seek out contrasting religious views from a trio of eminent Roosevelt friends in the New York City clergy establishment, Protestant Professor Reinhold Niebuhr at Union Theological Seminary, Jewish Reform Rabbi Stephen Wise and the recently appointed Catholic Archbishop Francis Spellman. Reporters always need to know who to call for diverse points of view.

The Guy’s musings about matters 80 years ago are provoked by a list of 20 campaign sources suggested to the media by the Religion News Association’s handy ReligionLink website.

Journalists can reflect on how times have changed. A 2020 listing can offer no divines with the public stature of those 1940 leaders. ReligionLink cites no thinkers from religious periodicals like the Century, or Christianity Toda, or the Catholic America, Commonweal,or conservative EWTN media cluster, or the Jewish upstarts at www.tabletmag.com.

For some reason, the list bypasses religion analysts at the Washington think tanks like the American Enterprise Institute, Ethics & Public Policy Center, Brookings Institution or Center for American Progress. With legal conflicts raging, the listing proposes calls to Rachel Laser at Americans United for Separation of Church and State but no attorney backing contrary religious liberty claims from the Becket Fund or the Alliance Defending Freedom — groups active in arguing cases at the U.S. Supreme Court.

On a list heavy with academics, it’s surprising not to see John C. Green of the University of Akron, the poli sci patriarch on the religion factor since the 1980s, or any specialist on the vast Southern Baptist Convention and white southern evangelicalism.


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Journalists should be gearing up for big 'culture war' cases at U.S. Supreme Court

The COVID-19 emergency shouldn’t divert the media from getting prepared for an unusual pileup of big “culture war” news that will break at the U.S. Supreme Court during the weeks through early July.

Pending decisions the media will need to interpret involve abortion, religious conscience claims, gay and transgender rights, taxpayer aid for students at religious school and (yet again) religious objections to mandatory birth-control coverage under Obamacare. Next term, the court will take up the direct conflict between LGBTQ advocacy and religious conscience, an uber-important problem.

These cases will show us how the newest justices, Neil Gorsuch (age 52, seated 2017) and Brett Kavanaugh (age 55, seated 2018), will be reshaping court edicts on religio-cultural disputes.

Here are the imminent decisions to be ready for.

Espinoza v. Montana (docket #18-1195) — This regards the venerable “Blaine amendments” in many state constitutions that forbid religion-related aid by taxpayers. Does a state violate the U.S. Constitution’s “equal protection” clause if it denies generally available public scholarships to students who attend religious schools?

Little Sisters of the Poor v. Pennsylvania, incorporating Trump v. Pennsylvania (19-431) — Last week, the court heard arguments in this case involving claims of religious rights vs. women’s rights. Did a Trump administration setup properly exempt religious objectors from the Obamacare mandate that requires employers to arrange birth-control coverage?

June Medical Services v. Russo (18-1323) — Louisiana requires abortion doctors to have admitting privileges at nearby hospitals, which pro-choice advocates say hobbles women’s access to abortion. In 2016, a Supreme Court with different membership threw out such a regulation in Texas

Our Lady of Guadalupe School v. Morrissey-Berru, incorporating St. James School v. Biel (docket # 19-267) — The court heard the argument on this Monday via a COVID-era telephone conference. This Catholic school case from California poses whether under the Constitution’s religious freedom clause schools and agencies can discriminate in hiring workers who are not officially ordained “ministers” but may carry out some religious functions. In a similar Lutheran case in 2012, the high court said yes.


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Gay-rights lawsuit against big seminary ties into '20 elections and pending Supreme Court case

With 2,900 students, Fuller Theological Seminary in California is one of the world’s largest and most influential clergy training grounds. The evangelical Protestant school believes that biblical teaching requires its faculty, students and staff to limit “sexual union” to marriage “between one man and one woman” while singles observe abstinence.

That moral stance, upheld across centuries in Judaism, Christianity, and Islam, now faces substantial legal and political resistance. 

Fuller's policy provoked a first-of-its-kind federal lawsuit, high on the developing news docket, that was joined last week by Nathan Brittsan, an American Baptist Churches USA clergyman. Those seeking background can see local coverage here and Religion News Service coverage right here. Fuller expelled Brittsan in 2017, just before he was to begin studies, when it learned about his gay marriage. 

Let’s back up a step. The suit was originally filed last November by Joanna Maxon, a student expelled during her last semester in 2018 after her lesbian marriage came to light. (Click here for Julia Duin’s GetReligion post criticizing Los Angeles Times coverage of Maxon’s complaint.)  

Paul Southwick, the attorney for Brittsan and Maxon, makes a straightforward claim that any religious school that discriminates on the basis of sexual activity by gays and lesbians should be penalized and lose federal aid. He thinks the case “could set an important legal precedent,” and notes that Fuller allowed a student accused of heterosexual sinning to remain enrolled.

Fuller is defended by the Becket Fund for Religious Liberty. The spokesman there said what’s at stake is the right of religions to educate their leaders “free from government entanglement.” There’s potential support in the Supreme Court’s unanimous 2012 Hosanna-Tabor ruling against an Obama Administration bid to deny religious exemption under employment law. 

A different tack against religious schools occurred when the regional accreditation of Gordon College was questioned.


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